People v Nunez

People v Nunez 2013 NY Slip Op 08116 Decided on December 5, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 5, 2013
Tom, J.P., Friedman, Renwick, Feinman, Clark, JJ.
11254 4229/10

[*1]The People of the State of New York, Respondent,

v

Darwin Nunez, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Julia Busetti of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Emily L.
Auletta of counsel), for respondent.

Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about July 17, 2012, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Regardless of whether the court properly assessed defendant 15 points for infliction of physical injury, defendant still qualifies as a level two offender, and there is no basis for a discretionary downward departure to level one (see People v Pettigrew, 14 NY3d 406, 409 [2010]). The underlying offense,
committed against a child, was serious, and the mitigating factors cited by defendant were generally taken into account by the risk assessment instrument.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 5, 2013

CLERK